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Home Editorials After Gaza 2014: Schabas

After Gaza 2014: Schabas

Published on November 4, 2014        Author: 

In the face of the heart-rending loss and injury of civilian life including children in the recent Gaza conflagration, it was neither unexpected nor inappropriate for the UN Rights Council to announce on 23 July 2014 that it was to launch ‘an independent inquiry to investigate purported violations of international humanitarian law and human rights laws in the Occupied Palestinian Territory, including East Jerusalem’.

People hold very strong views on the rights and wrongs of the Israeli-Palestinian conflict. Articles in EJIL dealing with this topic are always amongst the most downloaded. Passions run high, tempers flare, intemperate language is used. When such is translated into legal writing there is, with some exceptions, a tendency whereby the author’s political and moral views on the conflict translate almost linearly into legal conclusions. I say this with the experience of 25 years on the Board of Editors of EJIL. This is not necessarily an indictment of bad faith or an accusation of ‘brief writing’ disguised as scholarship.  One of the least contested insights of Legal Realism is the manner in which our normative sensibilities and sensitivities condition the very way we experience both facts and the law. But there is plenty of barely disguised lawfare too. Given our own scholarly mission and our belief, mocked by some, that the search for objective legal evaluation is a worthy, if at times Sisyphean, endeavour, we have often ‘balanced’ things out by encouraging debate and reaction pieces. This predates my tenure as Editor-in-Chief. Those with a long memory will recall the exchange between Francis Boyle and James Crawford on the 1988 Palestinian Declaration of Independence in one of our earliest issues.

One is typically blind to one’s own shortcomings. Personally I take some measure of comfort from the fact that my occasional legal writings on the conflict are regularly criticized, always with passion, by partisans on one or the other sides of the conflict, most recently in our own EJIL: Talk! in response to comments I made on the Levy Report.

Be that as it may, when the firing and killing ceases and judicial inquiry takes over it is in the interest of justice and the credibility of the bodies who administer it to adopt those other idioms of the law – dispassionate, ‘blind’, fair – and to heed the wisdom of justice needing not only to be done but to be seen to be done.

It is, thus, appropriate that the UN Rights Council speaks of an ‘independent’ inquiry to investigate ‘purported’ violations of IHL and HR. So it should be.

The Council in the same meeting condemned in the strongest terms ‘widespread, systematic and gross violations of international human rights and fundamental freedoms’ perpetrated by Israel in the conduct of hostilities. It serves neither the interests of justice nor the credibility of the bodies charged in administering such to reach these categorical conclusions before the body set up, in the same breath, to investigate purported violations has investigated and reported. Careful factual and legal analyses are needed before any definitive conclusions may be reached. One might think that the appointing body, already sticking the arrow and drawing the target around it, may put undue pressure on the independent investigating body to reach certain conclusions. Even if these were the views of Members of the Council, they should have been withheld when the Council, a political body, exercised its investigative and judicial authority. The dissonance jars and is compromising. The same is true for the failure of the Council explicitly to make Hammas, the effective government of Gaza, alongside Israel an object for investigating purported violations of IHL and HR.

In fairness, the resolution was far from unanimous, with a large body of Western countries abstaining.

Which brings us to the appointment of Professor William Schabas. Schabas has perfect professional credentials for membership; he is a distinguished and justly influential scholar in the field.  I know him to be an entirely honourable person of impeccable integrity. But once his statement, albeit in another context, emerged, available on Youtube, that ‘Netanyahu would be his favourite to be in the dock of the ICC’, I believe the only right thing was to recuse himself and step down.

I do not say this lightly, and saying this does not detract in any way from my laudatory comments about Schabas above. In this instance, the appointing body, in setting up the independent inquiry, specifically stated that the Commission was not only to explore purported violations of the law but to identify those responsible. Ms Pillay spoke in this context of the need to ‘end the culture of impunity’.  Netanyahu is Prime Minister of Israel and in his public statements has not, to his credit, tried to shift any responsibilities for the actions in Gaza to, say, the military. He could well be, in legalese, a target of investigation by the Commission.

Article 4 of the Code of Ethics of the ICC addresses the issue of impartiality. The Commission to investigate Gaza 2014 appointed by the UN Human Rights Council is not the ICC, but given its quasi-judicial function I do not see any reason why the standards of impartiality should be different.

Article 4(1) provides as follows:

1. Judges shall be impartial and ensure the appearance of impartiality in the discharge of their judicial functions.

The impartiality of Professor Schabas has been called into question in the light of an answer he gave to the Netanyahu comment. He explained, if press reports are to be trusted, that it was a comment made in view of the findings of the Goldstone Report. It has been pointed out that Netanyahu was in the Opposition during the Cast Lead operation and would have had ipso facto and ipso jure no responsibility for any findings in the Goldstone Report – a fact which could point to unacceptable animus by Schabas. There is another Youtube video in which Professor Schabas addresses Netanyahu in derogatory terms, again cited as indicating animus. I express no position on this.

But it is hard for me to accept that his pronouncement on Netanyahu as being his favourite to be in the dock of the ICC – regardless of the context of the comment – is consistent with ensuring ‘the appearance of impartiality’. That very question – whether there is evidence to indict Netanyahu for violation of international criminal law, might, directly or indirectly, be before the Commission.  In my view, this is a self-evident case where an appearance of impartiality might be created. For the Commissioner, the UN Council, the Commission of Inquiry and William Schabas himself to dig in is, in my view, unwise and counterproductive. When the appearance of justice is compromised, so is justice itself.

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15 Responses

  1. Guy

    Thank you for your thoughtful piece. I wonder, however, why the standard for impartiality of judges would apply to a person who, in the description given above, appears more akin to a prosecutor (since his role would be that of identifying those who might be investigated or prosecuted, and not adjudicating on them). Are there rules for the impartiality of prosecuting authorities, or of bodies suggesting individuals to be prosecuted? Would it be terrible for, say, Carla del Ponte, to have said before indicting Milosevic that in her view Milosevic should be on the dock in The Hague?
    In this case, the standard should be even lower, since it is clear that prof. Schabas would not even be involved in the choice of whether to actually prosecute certain individuals. I therefore do not understand why the standard for impartiality of Judges is relevant in this case.

  2. Yael

    I think that the issue is not whether the standards for judges and prosecutors is identical, but rather should the investigating authority come to an investigation with a certain pre-judgment of the situation?
    In a domestic law enforcement context I don’t think it is controversial that there is an expectation that a prosecutor examining the evidence brought to him or her by the police look at the evidence as objectively as possible and then decide whether there is sufficient evidence to press charges, rather than approach the material with an assumption that the suspect is guilty before deciding to press charges.
    Why should it be any different in an international context?

  3. Christina Cerna

    In my view Israel has a unique status in the UN Human Rights Council. Impartiality is not a requirement sought by the Council for the appointment of experts when it comes to Israel. I was selected as the consensus candidate of the Consultative Committee for the post of UN Special Rapporteur on the Occupied Palestinian Territories earlier this year, but the Organization of Islamic Cooperation and the League of Arab States both officially opposed me, which killed my candidacy. They opposed me for “lack of expertise,” although my entire professional life has been involved with human rights, but because I had never said anything pro-Palestinian and consequently was not known to be “partial” enough to win their support. The candidate that they officially supported was considered to be partial in their favor. No other special procedures mandate is similarly biased. At the end of the day, neither I nor the OIC candidate was appointed, but the Indonesian diplomat, Makarim Wibisono, who was appointed, was considered sufficiently “pro-Palestinian” to be acceptable to the OIC. Consequently, I don’t think Bill Schabas could have been selected to lead the “independent” inquiry if he hadn’t made the comments he had made about Netanyahu.

  4. Guy

    So, a prosecutor who thinks that don Corleone participated in mafia activities in the past cannot anymore order investigations on him for other events? Strange, it does not work like this in the UK…

  5. Ori

    Adding to that, it would seem that the inspiration for such commissions of inquiry is Article 90 to Additional Protocol I. The Article itself emphasises impartiality, whereas the purpose of such bodies seems very distinct to that of a prosecutor and more similar to that of a non-binding judicial mechanism.

  6. Ori

    Guy, in any event it’s not merely an issue of what Schabas has said in the past. Prior to his appointment he expressed his opinion that Israel violated IHL in the subject hostilities: http://youtu.be/yHc7RqYBI64

  7. Frédéric Mégret Frédéric Mégret

    I wrote about this a while back, with some very similar previous instances in mind.
    http://booksandjournals.brillonline.com/content/journals/10.1163/157180311×565133;jsessionid=4hg0c8u3512si.x-brill-live-03
    My own take in short (not specifically on the Schabas nomination issue): (1) surely if you believe that violations of the laws of war have been committed, then you must believe that the facts will speak for themselves, and actually designating a “champion” because that person has been known for making previous comments, knowing full well that his/her record will be at least partially discredited on the blogosphere (particularly among people who are already convinced that the UN is irredeemably partial against them) does not serve your cause, (2) surely there are enough human rights lawyers out there with impeccable credentials that have not gone on the record about the conflict that one can draw on, (3) no one is irreplaceable; simply because you think and know in your heart and mind that you will do a damn good job (and a lot of great people think so too) may not be enough in a context where what matters is arguably not just to get the fact rights in some abstract fashion but to do so in a way that convinces the relevant actors that you have.
    Having said that, there are a few complications: at times the putting in question of impartiality is so shrill and in bad faith, as to make one want to stay put (understandable human reaction); people who have never gone on the record about a particular conflict might be hugely biased in their own way, so the question of what defines impartiality fundamentally and whether it is at all possible in a highly polarized world remain important (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1949613).

  8. Jurist 1942

    Chirstina

    Many colleagues have mentioned similar bias and non impartial examples to me over the years with regards to the HRC.

    I have to admit i never really believed it but as time has gone on the clear inbalance and lack of impartiality is simply impossible to ignore.

    Thankyou for your post as i will cerainly be refering to it in future discussions. Shokcing that this UN body (as well as others) can be so easily influenced by politics.

  9. […] Schabas as a “a distinguished and justly influential scholar,” Weiler writes in the European Journal of International Law blog that “it is hard for me to accept that his pronouncement on Netanyahu as being his […]

  10. William Schabas’ prior statements on issues related to the case and controversy before him can be analyzed according to a grid of factors drawn from the established rules and jurisprudence of judicial impartiality, as distilled and set forth by Frédéric Mégret in his seminal article on UN fact-finders and impartiality, with key tenets quoted below (F. Mégret, “International Judges and Experts’ Impartiality and the Problem of Past Declarations” (2011) 10 The Law and Practice of International Courts and Tribunals 31):

    a. Related vs. Unrelated: Schabas’ 17 July pronunciation on BBC—that Israel’s military actions this summer were presumptive war crimes—was a direct comment relating to the very question before the commission. Likewise, Schabas’ declaration about Netanyahu being his “favorite” to see in the dock of the ICC is directly relevant to the issue at hand because the commission will be examining individual liability of those with command authority. Schabas’ leading role in campaigning for Israelis to be indicted for war crimes relate to the task before him.

    b. Specific vs. General: As with Chinkin’s prejudicial statement that Israel was “prima facie” guilty of war crimes, Schabas’ BBC statement about Israel being “prima facie” guilty of disproportionality is specific to the issue at hand. Like Geoffrey Robertson’s prejudicial comment referring to one of the accused, and to a group from which many of the accused were drawn, Schabas’ comments about Netanyahu being his favorite criminal could not be more specific about a key figure to be examined by his commission.

    c. Old vs. New: Just like with Chinkin’s letter in the Times of London, Schabas’ BBC comment made on 17 July—during the war and mere weeks before his appointment—leaves “little space to imagine how [he] could envisage the issue any differently so little time afterwards,” and constitutes a “quasi-concomitance” that “will serve impartiality badly.” . Similarly, Schabas’ statement about Netanyahu being his “favorite” ICC defendant in the world was made less than two year ago, such that Schabas is “more likely to still be under the lingering effect of [his] own public assumption of position, even if [he is] otherwise committed to impartiality.” Schabas’ recent comments have necessarily created “strong public assumptions” that he would decide a case in a certain way. “The better view is that one’s mandate is corrupted by these earlier expressions of opinion.”

    d. Trenchancy — Absolute vs. Relative: Schabas’ comments about Israeli leaders were formulated categorically and with intensity. “My favorite would be Netanyahu within the dock of the International Criminal Court,” and “[Netanyahu] is the single individual most likely to threaten the survival of Israel,” rise to the level of “trenchancy” as described by the English courts. The case of Schabas concerns not only the content of his opinions, justified or not, but the way he has expressed them. They reveal “a certain predetermined posture and mental rigidity in relation to the events at stake.” Moreover, the fact Schabas has regularly repeated his strong opinions, and campaigned for over three decades to indict Israelis, suggests that his opinions are strongly held and, all other things being equal, “might tend to affect impartiality.”

    e. Consensual vs. Polemical: Schabas’ repeated statements about Netanyahu being his “favorite” ICC defendant in the world, or of Netanyahu being “the single individual most likely to threaten the survival of Israel,” or comparing Shimon Peres to Sudanese dictator Omar al-Bashir, are contentious, inflammatory and polemical statements that “will inevitably invite criticism that impartiality is at stake.” The particular way in which Schabas has repeatedly framed these issues make him a provocative choice as a UN investigator of Israeli leaders for alleged violations of the laws of war.

    f. Legal vs. Factual: Schabas’ statements of concern, such as his call to indict the prime minister of Israel as his “favorite” ICC defendant, go beyond the mere expression of legal opinions. His 17 July pronunciation on the BBC that there was “evidence” showing Israel to be “prima facie” guilty of “disproportionality”—and therefore of war crimes—was a pronunciation by Schabas on factual issues without the benefit of judicial procedure. By expressing contentious views concerning facts shrouded in complexity, Schabas’ pronouncements “heavily compromise” his impartiality.

    g. Official vs. Personal Capacity: Unlike international judges whose prior statements were made when they were representing their governments in an official capacity, and therefore acting according to instructions, all of Schabas’ statements were made in his personal capacity. All of his problematic statements are attributable directly and only to him.

    h. Expert vs. Activist: While many of Schabas’ writings on various topics are expressed in moderate language and an academic tone, his actions and statements of concern here clearly fall into the activist category. Lobbying for Israel to be indicted by the ICC, and calling its leader his favorite to indict, indicates his personal choices “at odds with the qualities it takes to make an impartial judge or expert.” It was Schabas’ right to go on the BBC this summer and pronounce Israel presumptively guilty of war crimes, but “denouncing an ongoing military operation without the benefit of an investigation, whilst absolutely [his] right, belongs more to the tradition of public intellectual stand taking than expertise.” Schabas’ statements cannot be dismissed, as he has argued, as the normal course of expert statements by an academic; they fall, rather, in the activist category.

    i. Private vs. Public: All of the Schabas statements of concern were made in public, including those recorded on video or on BBC radio. As such, they make it more difficult for Schabas to claim that his statements do not taint his impartiality. “Public declarations are a way of ‘going on the record’ about something,” writes Mégret, “and will much more likely create a perception of partiality.” Last year, the International Criminal Tribunal for the former Yugoslavia dismissed a judge for statements made in a private letter that created the reasonable apprehension of bias, even though the dissent stressed that the audience was limited to his friends and associates. Schabas’ statements are even more damaging because they were public declarations made on camera or on the radio.

  11. […] of UN Special Rapporteur on the Occupied Palestinian Territories earlier this year,” Cerna wrote in a comment on the blog of the European Journal of International Law, “but the Organization […]

  12. Francis Boyle

    I created a State. Crawford just writes about it.

  13. Beverley Price

    When the fat of gluttonous anti-Semitism is extruded from the situation and from the bias of the UN, they are left with nothing but to hit the wall with the distilled and very thin truth. There is no place to hide. It is a disgrace that it is taking so long for him to recuse himself. The delay is an insult to human cognition and the diminishing human capacity for objectivity.

  14. Heiko Recktenwald

    Dear Beverly, IMHO the problem is not the legality under LOAC but the desire to punish. Maybe the ICC is not the right forum for such questions because the procedure starts with an accusation. And see also the leaflets. All things have many sides.

  15. I am afraid there is nothing about this farce that is impartial and everyone involved and everyone who more wisely chose not be involved knows it. It’s a nakedly aggressive Israel bashing exercise from start to finish. To ignore the ISIL like terrorists in Gaza, who have their own state and appear to have perpetrated war crimes, including on their own people and civilians of another country, is from a legal perspective inexcusable.
    And why is Schabas, who lectures at a minor University in North London, such a big deal? There are many widely respected, impartial fully qualified Judges worldwide far better suited than he. But I suspect most would run miles from this highly compromised investigation like Mrs Clooney did.
    From the initial partisan condemnations by the self same States with shocking Human Rights records which are never investigated, the wording used, the slant taken, the bias obviously required, it is quite clearly one huge sham which I believe should be and ultimately will be entirely ignored.